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Trial by Social Media

By: Mark Tottenham BL

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Until the age of social media, most democracies had well-established rules for protecting reputations and determining serious allegations, at both criminal and civil level.

Publishers of defamatory comments could be sued for damages. If a serious criminal allegation was made against an individual, he or she could cross-examine his or her accusers before an impartial judge or jury. An accused person was entitled to put forward his or her own account of what took place. Impropriety in the workplace could be dealt with either through internal procedures or, if they were inadequate, through the courts. The media could report the evidence in such hearings, but the courts could control the evidence that was adduced and thus the publication of scandalous material. If prejudicial material was published that might affect the outcome of a trial, the publisher could be prosecuted for contempt.

In recent weeks and months, however, several high-profile reputations have been trashed on social media, in Ireland and elsewhere. Serious allegations have been made by persons claiming to have been victims of a variety of acts, generally of a sexual nature. These range from serious sexual assaults (including rape) to ‘inappropriate touching’ and obscene comments. Not all would be considered criminal offences, although it is reasonable to say that the overwhelming majority would have been the subject of workplace disciplinary proceedings and likely termination of employment. There is no question but that the perpetrators, if found guilty, should receive the appropriate punishment.

But social media platforms do not provide the protection that was available in the pre-internet age. It seems probable that many reputations have been destroyed before the individuals have even heard of the allegations against them. Professional lives have been ruined. In other words, they have been convicted in the court of public opinion, and punished, without any opportunity to cross-examine their accusers or to give their side of the story before an impartial judge or jury.

The consequences are serious, and not just for the individuals themselves. Most global celebrities are now ‘brands’, with large organisations behind them. Where such a brand has been tarnished, it often results in the cancellation of new projects, with - presumably - devastating consequences for employees, agents, co-stars and production crews, among others.

The social media platforms on which these stories are disseminated are owned by some very large and rich companies, with huge advertising incomes and high share prices. They are used by a significant proportion of the world’s population. But they are treated as ‘platforms’, not ‘publishers’ for most purposes, and are largely protected from liability for defamatory comments on their sites. (See, for example, Muwema v. Facebook Ireland Ltd [2016] IEHC 519 (High Court, Binchy J, 23 August 2016).

The tide is likely to turn, however. Already, these companies are under scrutiny for their alleged role in affecting the outcome of elections, although their global reach suggests that no individual country could properly control their conduct. Perhaps in time, they will develop better rules for the protection of reputations, and the determination of allegations, similar to those that - over centuries - have developed in the offline world. One platform that has some rules of this sort is Wikipedia. These have largely been developed by Wikipedia’s massive army of voluntary contributors and editors, although the Wikimedia Foundation has some control over them. Other online providers should take note.

First Published in Law Ireland in August 2018

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